Madhya Pradesh High Court
Chandrawati Wd/O Surjanram And Ors. vs Ganesh Prasad Lakshmi Prasad And Ors. on 18 August, 1998
Equivalent citations: 1999(1)MPLJ107
Author: C.K. Prasad
Bench: C.K. Prasad
JUDGMENT C.K. Prasad, J.
1. This is plaintiff's (since dead) second appeal under Section 100 Civil Procedure Code. He died during the pendency of the appeal and this appeal is being pursued by his legal representatives. Plaintiff filed the suit for recovery of possession of agricultural land having an area of 10.24 acres situated in village Soor in the district of Sarguja from defendants 1, 2 and 6. He further prayed for the relief of mesne profits at the rate of Rs. 500/- per year from the defendants excepting defendant No. 7. Further relief sought for by him was that the auction sale held by defendant No. 4 on 14-5-1976 in relation to survey plot nos. 554, 555, 557 and 2528 be declared null and void. Second Civil Judge, Class II Ambikapur (Sarguja) by judgment and decree dated 27-12-1983 passed in Civil Suit No. 88-A/79 decreed the suit. Defendants 1, 2 and 6 being aggrieved by the same preferred appeal and the Second Additional District Judge, Ambikapur (Sarguja) by judgment and decree dated 28-4-1988 passed in Civil Appeal No. 44-A of 1986 allowed the appeal and dismissed the plaintiff's suit. Plaintiff being aggrieved by the same has preferred this appeal. By order dated 27-2-1989 appeal has been admitted on the following substantial questions of law :-
1. Whether the first appellate Court erred in finding that the suit for declaration, possession, injunction and mesne profits filed by the plaintiff-appellant against the defendants-respondents was barred by limitation?
2. Whether the provisions of Section 41-A(5) of the Madhya Pradesh Co-operative Societies Act superseded the provisions contained in Section 165(9) of the Madhya Pradesh Land Revenue Code and accordingly the suit land mortgaged by the plaintiff with the defendant Co-operative Society could not be sold for recovery of dues from him?
2. It is admitted position that in the financial year 1965-66 plaintiff obtained loan of Rs. 1,500/- from Aadim Jati Sewa Sahakari Samiti, Chalta (hereinafter referred to as the Society). On a dispute being raised award was handed over against the plaintiff on 30-10-1972, for an amount of Rs. 2,638/-, which included Rs. 1,500/- as the principal sum and Rs. 1,138/- as interest. For non payment of the aforesaid amount, on 18-2-1976 auction proclamation was issued and auction sale took place on 22-3-1976. Defendant No.l Ganesh Prasad is the auction purchaser. On 14-5-1976 auction sale was confirmed and in July 1976 sale certificate was issued and auction purchaser got possession of the land. Plaintiff filed the suit on 9-5-1979. Plaintiff challenged the sale before the Registrar, Co-operative Society and matter went up to the Board of Revenue, but he did not succeed. Possession of the defendants 1, 2 and 6 over survey plot Nos. 554, 555, 557 and 2528 is also admitted. Plaintiff filed the suit on 9-5-1979 seeking reliefs inter alia for declaration that the auction be declared void ab-initio, for recovery of possession, injunction and mesne profits.
3. According to the plaintiff, he belongs to an aboriginal tribe and in the capacity of scheduled tribe he contested twice the election for the Loksabha from a seat reserved for the members of the Scheduled tribe. According to the plaintiff in the year 1965, he took a loan of Rs. 1,500/- from the society which merged with another society, defendant No. 3. On account of non payment of loan, award against him was handed over and on 28-2-1976 sale proclamation was issued and on 22-3-1976 without the knowledge of the plaintiff, property was auction sold for a sum of Rs. 4,600/-. According to the plaintiff on 14-5-1996 defendant No. 4 issued sale certificate in favour of defendant No. 1. Plaintiff's case further is that defendant No. 2 and defendant No. 6 with the help of Sitapur Police took possession of the suit land including plot nos. 541, 542 and 2276 which" were not auction sold. According to the plaintiff in view of the Madhya Pradesh Ordinance No. 22 of 1975, which inter alia amended the provisions of the Madhya Pradesh Co-operative Societies Act and which came into force on 3-12-1975, property of an aboriginal tribe cannot be sold to a non aboriginal tribe and hence the sale is void ab-initio. According to the plaintiff after giving notice to the defendants, he has filed the suit.
4. Suit was heard ex parte against defendant No. 3 and he has not filed any written-statement. Defendant No. 4, Senior Co-operative Inspector and Recovery Officer, Co-operative Societies, Ambikapur and defendant No. 5, President of the society have filed their written-statement and controverted the allegations made in the plaint. Their further stand is that in view of the provisions of the Madhya Pradesh Co-operative Societies Act, 1962, Civil Court has no jurisdiction to entertain the suit. Their further stand is that no valid notice was given to defendant No. 3 and as such, plaintiff cannot seek relief against him.
5. Defendants 1, 2 and 6 while denying the assertion made by the plaintiff have stated that plaintiff is a member of Kissan caste and Kissan and Nagesiya are different castes and the plaintiff after projecting himself to be Nagesiya is getting the benefits meant for aboriginal tribe. Their further assertion is that plaintiff by playing fraud had contested from reserved Loksabha seat, but he cannot derive benefit from the same. According to these defendants as the sale certificate has been issued and has become final, plaintiff cannot challenge the same in the Court. Their further assertion is that defendants 1 and 2 had spent Rs. 12,000/- and improved the land and the suit filed by the plaintiff is hopelessly barred by limitation. Their further stand is that in case, the auction sale is held to be illegal, they may be paid the amount of auction sale as also Rs. 12,000/-, which was spent by them for improvement of the land.
6. On the basis of the pleadings of the parties, trial Court has framed various issues and on consideration of the materials placed before it, it held that the plaintiff is an aboriginal tribe notified under the provisions of the Madhya Pradesh Land Revenue Code, 1959. It further held that defendant No. 5 has illegally auction sold the land of the plaintiff of Khasara Numbers 554, 555, 557 and 2528 in spite of prohibition under Section 41-A(5) inserted by Section 17 of the Madhya Pradesh Co-operative Societies (Amendment) Ordinance, 1975 (Ordinance No. 22/75). Trial Court further found that the suit has been filed within the period of limitation. Lower Appellate Court affirmed the finding of the trial Court that the plaintiff is the member of aboriginal tribe, but found that provisions of the Madhya Pradesh Land Revenue Code overrides the provisions of Section 41-A(5) of the Co-operative Societies Act and the later shall not control the provisions of Section 165(9) of the Madhya Pradesh Land Revenue Code. Accordingly it held that the auction sale of the plaintiff's property is not prohibited by Section 41-A(5) of the Co-operative Societies Act. Hence the lower appellate Court found the auction sale to be legal. It also reversed the finding of the trial Court on the question of limitation and found that the suit is barred by limitation. Accordingly it allowed the appeal and dismissed the suit.
7. Shri Ravish Agrawal, appears on behalf of the plaintiffs-appellants and Shri L. S. Baghel, appears on behalf of respondents 1, 2 & 6, whereas Ku. Jyoti Agnihotri, represents respondent No. 7.
8. As the decision on the first substantial question of law formulated will depend upon answer to the second substantial question of law, I deem it expedient to consider the same first. The Madhya Pradesh Co-operative Societies (Amendment) Ordinance, 1975 (Ordinance No. 22/75) was promulgated by the Governor and published in M.P. Rajpatra (Asadharan) on 20-11-1975. Said Ordinance was promulgated to amend the provisions of the Madhya Pradesh Co-operative Societies Act, 1960. Section 17 of the said Ordinance inserted Section 41-A in the Co-operative Societies Act. The said Ordinance was followed by the Madhya Pradesh Co-operative Societies (Amendment) Act, 1976 (Act No. 14 of 1976) and was published in Gazette on 15-3-1976. What was provided by Section 17 of Ordinance No. 22/75 has been provided by Section 16 of Act 14/76. Section 41-A of the Co-operative Societies Act, has been inserted by the aforesaid provision. Section 41-A(5) (6) which is relevant for the purpose reads as follows :
"41-A. (1)..............
(2)..............
(3)...............
(4)...............
(5) Nothing in this section shall be construed to empower the society to sell any land or interest therein of a person belonging to an aboriginal tribe which has been declared to be an aboriginal tribe by the State Government by notification under section (6) of Section 165 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959) to a person not belonging to such tribe.
(6) Nothing in the Madhya Pradesh Ceiling on Agricultural Holdings Act 1960 (No. 20 of 1960) shall apply to a society acquiring land under sub-section (1) and holding such land till such time as the society is in a position to sell the land in the manner provided in this section or otherwise, at a price which is adequate to cover its dues."
Section 165(9) of the Co-operative Societies Act before its amendment by Madhya Pradesh Act No. 2/90 reads as follows :-
"165(9) Nothing in this section shall prevent a Bhumiswami from transferring any right in his land to secure payment of an advance made to him by the Co-operative Society or shall affect the right of any such society to sell such right for the recovery of such advance."
State Government in exercise of its powers conferred under Section 165(6) of the Madhya Pradesh Land Revenue Code (hereinafter referred to as the Code) has published the list of aboriginal tribes which includes Nagvanshi at item No. 15 whereas Nageshiya at item No. 32.
9. It is the stand of the plaintiff that he being a Nageshiya, is an aboriginal tribe notified under Section 165(6) of the Code and hence in view of Section 41-A(5) of the Co-operative Societies Act (hereinafter referred to as the Act) nothing in Section 41A of the Act shall construe to empower the society to sell any land or interest of the plaintiff who belongs to the aboriginal tribe. Shri Baghel, however, appearing on behalf of the respondents 1, 2 and 6 submits that in view of Section 165(9) of the Code, Co-operative Society shall have the right to sell rights for the recovery of advance and the provisions of Section 41-A(5) of the Act shall not come in way of the society. He. submits that the provisions of the Code being special enactment, provisions of Section 41-A(5) of the Act shall be controlled by the former. It is relevant here to state that the lower appellate Court had accepted this stand of the defendants and found that Section 165(9) of the Code holds the field and is not controlled by Section 41-A(5) of the Act.
10. Having heard Shri Ravish Agrawal for the appellants, Shri L. S. Baghel for respondents 1, 2 and 6 and Ku. Jyoti Agnihotri for respondent No. 7, I am of the considered opinion that the view taken by the lower appellate Court is palpably wrong. Section 165 of the Madhya Pradesh Land Revenue Code regulates the right and interest in land by the Bhumiswami. However, the riders put by the other clauses of Section 165 of the Code for transfer of interest of land by the Bhumiswami has been made inapplicable, in case of transfer by Bhumiswami to Co-operative Society to secure loan and the societies right to sell such right for the recovery of such advance. Provisions referred to above applies in the case of Bhumiswamis belonging to any class. However Section 41-A(5) of the Act has carved out an exception and it prohibits the society to sell any land or interest of a person belonging to an aboriginal tribe, notified as such by the State Government under Section 165(6) of the Code. It is relevant here to state that both the enactments, i.e. Madhya Pradesh Land Revenue Code and Madhya Pradesh Co-operative Societies Act are State enactments. Therefore, in the case, the submission of Shri Baghel is accepted, i.e. in view of Section 165(9) of the Code society has the right to sell interest of any class of people including the aboriginal tribe, it takes away what has been given by the legislature in Section 41-A(5) of the Act i.e. prohibition on transfer of land of an aboriginal tribe. It is well known rule of construction that such a course cannot be lightly assumed by a Court of law while interpreting the provisions of the statute. In my opinion, Section 165(9) of the Code deals with all classes of people and the society's right to recover such advance. Section 165(9) of the Code has been enacted to over- come the rights and liability of the Bhumiswami vis-a-vis other provisions of Section 165 of the Code. Therefore, provisions of Section 165(9) can be invoked by the society and the other provisions of Section 165 shall not stand R. F. 8 in its way. Section 165(9) of the Code specifically contemplates of non-application of the main section regarding the right of the society and it nowhere affects the operation of the Madhya Pradesh Co-operative Societies Act. Therefore in my opinion the provisions of Section 165(9) of the Code shall in no way control the operation of Section 41-A(5) of the Act. Further Section 41-A(5) of the Act is a special provision enacted for the Welfare of the aboriginal tribe on matters of sell of their property and in my opinion this special provision shall prevail and the matter shall not come within the general provisions of Section 165(9) of the Code.
11. I am fortified in my view from the decision of the Supreme Court in the case of Jogendra Lal Saha v. The State of Bihar and Ors., AIR 1991 SC 1148; wherein it has been held that Sections 82 and 83 of the Forest Act, 1927 are special provisions which will prevail over the provisions in the Sale of Goods Act. Relevant portion of the judgment reads as follows :-
"If the scheme under Sections 82 and 83 of the Act are put together and kept in view, it clearly follows that the entire situation has been provided for by special legislation and there is no need to fall back upon the provisions of the Sale of Goods Act to deal with the claim. There is no quarrel that a special provision would keep away the application of the general law and contracts for the sale of forest produce have, therefore, to be covered by the provisions contained in these two sections."
There is yet another reason for which I am inclined to hold that the provisions of Section 41-A(5) of the Act shall prevail and that is the said provision is a welfare legislation for protecting the members of aboriginal tribe. Viewing from any angle I am of the opinion that the provisions of Section 41-A(5) of the Act shall operate in the field.
12. To overcome the rigor of Section 41-A(5) of the Act, Shri Baghel submits that the plaintiff does not belong to the aboriginal tribe and hence he is not protected under the aforesaid provision. It is worthwhile here to mention that both the Courts below have concurrently found that plaintiff is a member of aboriginal tribe as notified under Section 165(6) of the Code, but Shri Baghel submits that the said finding is open to challenge under Order 41, Rule 22 Civil Procedure Code, which reserves the right of the respondent, who has not preferred appeal from the decree, to contend that the finding recorded against respondents ought to have been in their favour. Shri Ravish Agrawal appearing on behalf of the appellants very fairly states that the respondents in appeal is free to contend that the finding adverse to him ought to have been in his favour, but his submission is that in the second appeal such a right of the respondent is controlled by Section 100 as also Order 42, Rule 1 of the Code of Civil Procedure and in his submission respondents can be heard in relation to the findings of the Courts below only when it is shown that the same involves substantial question of law.
13. It is relevant here to state that Order 41 of the Code of Civil Procedure provides for procedure for hearing of appeals from original decrees. Section 96 of the Civil Procedure Code gives right of appeal from original decrees whereas Section 100, Civil Procedure Code provides for second appeal from appellate decrees. As stated earlier, Order 41, Civil Procedure Code provides for procedure for hearings of appeals from original decrees, commonly described as first appeal and by virtue of Order 42, Rule 1, Civil Procedure Code, rules of Order 41 has been made applicable so far as may be to appeals from appellate decrees. Section 100, Civil Procedure Code provides for appeal from an appellate decree, i.e. second appeal which can be heard by the High Court, if it is satisfied that in the appeal substantial question of law is involved. Order 42, Rule 2 Civil Procedure Code provides for formulating the substantial question of law at the time of making an order under Rule 11, Order 41 of the Code of Civil Procedure. According to Shri Agrawal, in appeal from an appellate decree, the respondent can be heard on question of fact when the same involves substantial question of law.
14. Question, therefore, is as to whether in appeal from appellate decree, i.e., second appeal the respondents can be heard to say that the findings against them in the Courts below in respect of any issue ought to have been in his favour notwithstanding the rider of Section 100 or Order 42, Rule 2, Civil Procedure Code? In other words whether involvement of substantial question of law shall or shall not operate against respondent. It is worthwhile mentioning here that the rules of Order 41, apply in the case of appeal from appellate decrees so far as may he, in view of Order 42, Rule 1, Civil Procedure Code. I am of the opinion that different yard stick cannot be applied in the case of appellants and respondent on an issue of fact. In case, the appellant in second appeal from an appellate decree cannot be heard on an issue of fact, unless the same involves substantial question of law, for parity of reasons respondents will also have to pass the same test and satisfy to the Court that the decision on an issue involves substantial question of law. In my opinion, provisions of Order 41, Rule 22, Civil Procedure Code shall be applicable in the case of appeal from appellate decree only when the appellate Court is satisfied that the issue decided against the respondents is fit to be gone into as it involves substantial question of law. I am of the considered opinion that when the appellants in appeal from appellate decree has to pass through a prescribed test and satisfy to the second appellate Court that the appeal involves substantial question of law, respondent in such appeal cannot be heard to say that the finding against him in the Courts below on any issue ought to have been in his favour without facing the same rigor i.e. to satisfy to the second appellate Court that it involves substantial question of law. In my opinion, same yardstick has to be applied in case of the respondent as that of the appellant when the respondent questions the finding of the Court below in second appeal.
15. Shri Baghel submits that the finding recorded by the Courts below that the plaintiff is an aboriginal tribe is perverse. He submits that the lower appellate Court committed error by holding that Kisan is not a caste but an avocation. In this connection Shri Baghel draws my attention to the Final Report on the Original Survey and Settlement Operation in the Sarguja State (1937-1946) in which it has been stated that Kisan besides other tribes are the aboriginal tribe who reside in the State. In this connection Shri Baghel also draws my attention to the order dated 12-2-1988 passed in Second Appeal No. 365/87 wherein it has been observed as follows :-
"The impugned judgment discusses this matter in detail only to reach the conclusion that there is nothing like Kisan caste. It is only an avocation and does not describe the caste of the tribe."
Shri Baghel has also drawn my attention to the order dated 3-3-1994 passed in S. A. No. 6/93 in which this Court affirmed the finding of the lower appellate Court that "since the defendants describe their caste as Kisan, they cannot claim to be members of scheduled tribe." Shri Baghel submits that in view of the conflict of opinion between the aforesaid two judgments rendered by single Judge of this Court, the matter may be referred to a Division Bench. He further points out that whether Kisan is a caste or avocation in the erstwhile Sarguja State is under consideration before a Division Bench of this Court in a writ petition and he has made a prayer that hearing of the appeal be postponed till the decision by the Division Bench.
16. Here in the present case, I am not inclined to accede to the prayer of Shri Baghel for postponement of the hearing of the appeal on the ground of pendency of the writ petition which is to consider as to whether Kisan is a caste or an avocation or refer the matter to Division Bench on account of conflict of opinion between the two judgments rendered by learned Single Judge, on the ground that in the present case plaintiff has been found to be the member of Nagesia tribe. Both the Courts below have concurrently found the plaintiff to be aboriginal tribe as notified under Section 165(6) of the Code. Hence the question as to whether plaintiff is Kisan or not does not fall for determination in the present appeal.
17. Shri Baghel to overcome the aforesaid difficulty contends that the finding recorded by the Courts below that the plaintiff belongs to Nagesia tribe is perverse. It is relevant here to state that Nagvanshi and Nagesia are tribes which have been notified as aboriginal tribe under Section 165(6) of the Code. Courts below have taken into consideration the demand notice given by the society for refund of the loan (Ex.P-3) in which the caste of the plaintiff has been shown as Nagesia. Similarly in the application of society before the Assistant Registrar for enforcement of charge, caste of the plaintiff has been shown as Nagvanshi. In the sale proclamation (Ex.P-5) caste of the plaintiff has been shown as Nagesia. In Bid-sheet (Ex.P-10), in the notice for attachment of the property (Ex.P-12), sale proclamation (Ex.P-13) and order sheet (Ex.P-15), caste of the plaintiff has been shown to be Nagesia. Thus, in the records of defendants 4 and 5 i.e., the society from which the plaintiff had taken loan his caste has been shown as Nagesia. In fact, the society auction sold the property considering the plaintiff to be a member of Nagesia tribe, i.e. aboriginal tribe. Finding arrived at by the Courts below is on consideration of relevant materials and its finding cannot be said to be perverse. As held earlier, the respondents can assail the finding on an issue under Order 41, Rule 22 Civil Procedure Code only when the same involves substantial question of law. Finding arrived at by the Courts below being on consideration of materials placed before it, same is not perverse calling for interference by this Court in this Second appeal.
18. Having concurred with the finding of the two Courts below that: the plaintiff is aboriginal tribe and the provisions of Section 41-A(5) of the Cooperative Societies Act shall hold the field, defendant co-operative society could not have auction sold the suit land mortgaged by the plaintiff for recovery of dues. Second substantial question of law framed is, thus, answered in favour of the plaintiff and against the defendants.
19. It is relevant here to State that the trial Court having found the auction sale of the plaintiff's property and sale certificate to be void, held that the suit is not barred by limitation. Lower appellate Court, as stated earlier, however, has held that auction sale as also the sale certificate is not null and void and the suit is also barred by limitation. Shri Agrawal submits that the auction as also the sale having found to be null and void, suit cannot be said to be barred by limitation. He further submits that as the auction sale and the sale certificate have been held without authority and the same being completely without jurisdiction, the question of limitation for challenging the same does not arise at all. It is relevant here to state that in the present case sale certificate was issued on 14-5-1976 and the suit was filed on 9-5-1979. Having found that the auction sale and the sale certificate are null and void, the view taken by the trial Court that the suit is not barred by limitation is correct. Lower appellate Court has found the suit to be barred by limitation on its finding that the auction and the sale certificate are not null and void and that having been found to be erroneous, lower appellate Court committed an error of law in holding that the suit is barred by limitation. First substantial question framed is thus, also answered in favour of the plaintiff and against the defendants.
20. In the result, appeal is allowed. Judgment and decree of the lower appellate Court are set aside and that of the trial Court restored. In the facts and circumstances of the case, there shall be no order as to cost.